City of Lakeland Employee Morale Survey Spurs Records Dispute

By RYAN E. LITTLETHE LEDGER

Thursday

Apr 17, 2014 at 9:53 PM

The city of Lakeland again found itself embroiled in a public records dispute Thursday. Until the early evening, city officials refused to release a copy of the 80-question morale survey that city employees are taking.

LAKELAND | The city of Lakeland again found itself embroiled in a public records dispute Thursday.Until the early evening, city officials refused to release a copy of the 80-question morale survey that city employees are taking.The survey was produced by a private company that contends it is exempt from public records laws because it is a copyrighted, proprietary trade secret.The dispute grew to the point that both the company, Agility INsights, and Mayor Howard Wiggs threatened to end the survey. Agility INsights told city officials Wednesday it would end it if the city released it. Wiggs said Thursday he would ask city commissioners Monday to end the city's contract with the company if the information was not released.Late Thursday, after discussions between a lawyer representing The Ledger, Carol Jean LoCicero, and City Attorney Tim McCausland, city officials said they would allow the inspection of the questions today but would not allow copies to be made.City officials cited a state attorney general's opinion that says federal copyright law precludes them from making copies because the survey is copyrighted material. However, LoCicero and Barbara Petersen, president of the First Amendment Foundation in Tallahassee, said the city cannot preclude copies from being made because of an exception in federal copyright laws known as fair use."Federal copyright law protects the author's economic investment in the material," Petersen said. "It doesn't mean you can't look at it. It doesn't mean you can't make a copy of it."The dispute stems from the morale survey commissioners hired Agility INsights to conduct after the Lakeland Police Advisory Commission recommended last year that a survey be conducted. The advisory commission made a number of recommendations after the Police Department faced a sweeping sexual misconduct investigation, criminal cases that were fouled by search and reporting procedures, the arrest of an officer on charges he sexually abused and stalked a woman while on duty, and a grand jury investigation into problems with then-Police Chief Lisa Womack and the department's handling of public records.The Ledger on Wednesday made a public records request for the 80 questions after hearing multiple complaints from city employees about the survey, which is accessed through city computers. City officials said they were not given a paper copy of the questions.Emails made available to The Ledger through a subsequent public records request Thursday show city officials initially thought they could allow the public to inspect the questions but not make copies because they are copyrighted. But Agility INsights officials, in multiple emails to the city, said they could not allow even an inspection of the questions.Herb Nold, Agility INsights managing partner for the U.S., in an email to the city Wednesdaysaid the survey would be ended in 30 minutes from the time his email was sent unless the city guaranteed it would not release the questions publicly. The survey never stopped, though. A discussion between McCausland and the company's attorney pre-empted the shutdown, city spokesman Kevin Cook said.The city plans to allow inspection of the survey today. The company also won't try to stop the release if it can't find an exemption to the public records laws. It was still searching for an exemption on Thursday night, Nold said."We're going to comply with whatever (the law) is," he said. "I'm not going to fight City Hall or The Ledger."City employees began taking the Agility INsights survey Monday. It's planned to end on April 25 and costs about $25,000.The company, which is based in Switzerland, was hired without a competitive bidding process because the cost was low enough to not require one. Wiggs has said commissioners "basically jumped" on the company because Polk State College was initially part of the proposal — Nold is a business professor at the school. The college has since dropped out.Nold said the company has fought the release of the questions because it would damage the company's financial interests by giving competitors the ability to use its "new and innovative" survey to create a similar one. People also will have a hard time understanding how the survey works, he said."Reading the questions themselves ... without having the knowledge to interpret them, it is going to sound like gibberish, that they are meaningless," Nold said."If we release those questions, I don't see what they are going to accomplish in a productive nature other than give a potential competitor a baseline for which they can build up a similar tool."Wiggs said he is glad the city is going to allow inspection of the document."It's funny that we take so long to do something that is so common sense," he said.Wiggs said he never intended to vote for an agreement with a company that would not allow the public to view the survey. He said he thinks the city wanted to release the survey from the beginning but was doing its best to prevent a lawsuit from Agility INsights."We have a responsibility to the taxpayers to not do something we know we are going to get sued over," he said. "That's why I said we should just shut down the contract."

[ Ryan Little can be reached at ryan.little@theledger.com or 863-802-7592. ]

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